[Pharm-policy] Exports under complusory licensing: Article 31.k

[James Love]

Given the EU's recent statement that TRIPS does not permit exports under
a compulsory license, I thought it would be helpful to provide the
language from Article 31.k of the TRIPS that experessly permits exports,
and also pointers to a few (of several) US compulsory licensing cases
where exports are permitted. 


http://www.cptech.org/ip/health/cl/cl-art31.html

    (k)    Members are not obliged to apply the conditions set forth in
subparagraphs (b) and (f) where such use is permitted to remedy a
practice determined after judicial or administrative process to be
anti-competitive. The need to correct anti-competitive practices may be
taken into account in determining the amount of remuneration in such
cases. Competent authorities shall have the authority to
refuse termination of authorization if and when the conditions which led
to such authorization are likely to recur; 


http://www.usdoj.gov/atr/public/press_releases/1998/2103.htm

JUSTICE DEPARTMENT APPROVES MONSANTO'S ACQUISITION OF DEKALB GENETICS
CORPORATION 
Divestiture of Transformation Technology Rights and Licensing of Corn
Germplasm Implemented 

"American farmers feed the nation and the world. Competition in
biotechnology ensures that those farmers have access to the latest
innovations in seed technology. The action taken today will ensure the
producers can get the best corn seeds at the lowest prices," said Joel
I. Klein, Assistant Attorney General in charge of the Antitrust
Division. "The spin-off of the transformation technology, and the wide
licensing of corn germplasm, will preserve competition in this newly
emerging market for corn with transgenic improvements." 

   . . . 

Biotechnology developers wanting to introduce improvements in corn
require access to elite germplasm such as that held by the two firms.
Monsanto's licensing of Holden's corn germplasm to over 150 seed
companies that are current Holden's customers for use in creating corn
hybrids with transgenic improvements will ensure that the merger does
not reduce competition in biotechnology developments in corn.


http://www.usdoj.gov/atr/public/press_releases/1999/2646.htm
    26 August, 1999, AK Steel Corporation patents. 

The license agreement gives Wheeling-Nisshin a non-exclusive,
irrevocable licence to make, use, and sell aluminized stainless steel in
North America. The agreement allows Wheeling-Nisshin to make aluminized
stainless steel using AK Steel's and Armco's patented  processes, or any
other process. 


http://www.ftc.gov/os/1997/9704/c3725.do.htm

In the Matter of Ciba-Geigy Limited, Ciba-Geigy Corporation, Chiron
Corporation, Sandoz Ltd., Sandoz Corporation, and Novartis AG.

4. all intellectual property located, generated, obtained, or used in
the United States and Canada, including, but not limited to, trade
secrets, test data, technology and know-how, and all United States and
Canadian patents, patent applications, patent rights and licenses;  


2. Respondent Chiron shall grant to each Person who so requests a
Cytokine License, in perpetuity and in good faith. In payment for such
license, Respondent Chiron shall receive a royalty, or its equivalent,
of no greater than three percent (3%) of the Net Sales Price of
Cytokine Licensed Products, paid from the date of first commercial sale
of royalty bearing products or services until a time no later than the
expiration of the last to expire patent; provided, however, that if
Respondent Chiron's grant of a Cytokine License includes the right to
manufacture, then Respondent Chiron shall receive a royalty of no
greater than one percent (1%) above the royalty due from Respondent
Chiron to all third party IL-2 licensors of Respondent Chiron.
Respondent Chiron may also request certain non-exclusive rights to
obtain and use safety and efficacy data generated by said Cytokine
Licensee to support its own regulatory filings. 



http://www.ftc.gov/opa/1995/9510/upjm.htm

  
1995. FTC review of the Upjohn/Pharmacia Aktiebolag merger required a
divestiture or a complusory license of patent rights. According to the
FTC press release issued on October 27, 1995: 

The Commission would be permitted to appoint a trustee to divest the
9-AC assets, including an exclusive license to 9-AC in the United States
as well as an exclusive or nonexclusive license to market 9-AC in the
rest of the world. In addition, the consent agreement would require the
merged firm to provide technical assistance and advice to the acquirer
toward continuing the research and development of 9-AC. 

http://www.ftc.gov/opa/1995/9511/dell.htm
DELL COMPUTER SETTLES FTC CHARGES; WON'T ENFORCE PATENT RIGHTS FOR
WIDELY USED COMPUTER FEATURE

http://www.ftc.gov/opa/1995/9511/sil2g.htm
Silicon graphics

http://www.ftc.gov/opa/1997/9705/cadence.htm

FTC SETTLEMENT WITH CADENCE, COOPER & CHYAN TO PRESERVE COMPETITION IN
AUTOMATED CHIP DESIGN SOFTWARE

-- 
James Love  mailto:love@cptech.org http://www.cptech.org
Consumer Project on Technology, P.O. Box 19367, Washington, DC 20036
voice 1.202.387.8030  fax  1.202.234.5176